BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 1310|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: AB 1310
Author: Gatto (D)
Amended: 7/7/15 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/30/15
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
ASSEMBLY FLOOR: 79-0, 5/14/15 - See last page for vote
SUBJECT: Disorderly conduct: unlawful distribution of image
SOURCE: Attorney General of California
DIGEST: This bill provides that jurisdiction for trial of the
crime of distribution of a sexual image in violation of an
agreement that the image shall remain private and (cyber sexual
exploitation) shall include the county in which the offense
occurred, the county in which the victim resided at the time of
the offense, or the county in which the intimate image was used
for an illegal purpose; provides that where the same defendant
or defendants commit cyber sexual exploitation crimes in more
than one county, and the crimes are part of a scheme or involve
substantially similar acts, the charges can be tried in a single
county; provides that a search warrant for electronic
communications and records can include communications between a
service provider and a customer, as specified; and specifies
procedures, standards and limitation for obtaining and serving
search warrants for electronic communications and computer
AB 1310
Page 2
service information.
ANALYSIS:
Existing law:
1) Provides that a defendant who intentionally distributes the
image of the intimate body part of another identifiable
person, or an image of the person engaged in an act of sexual
intercourse, sodomy, oral copulation, sexual penetration, or
an image of masturbation involving the person depicted, and
the defendant and the person depicted agree or understand
that the image shall remain private, the person distributing
the image knows or should know that distribution of the image
will cause serious emotional distress, and the person
depicted suffers that distress is guilty of disorderly
conduct, a misdemeanor, punishable by a jail term of up to
six months, a fine of up to $1,000, or both. For a second or
subsequent conviction, or where the victim is a minor, the
maximum jail term and fine is one year and $2,000
respectively. (Pen. Code §§ 647, subds. (j)(2)-(3) and (l).)
2) Includes the following definitions:
a) "Distribution" means that the defendant personally
distributed the image, or arranged, requested, or
intentionally caused another person to distribute that
image; (Pen. Code § 647, subd. (j)(4)(B).)
b) "Intimate body part" means the genitals, anus, and in
the case of a female, any portion of the breasts below the
top of the areola, that is either uncovered or clearly
visible through clothing. (Pen. Code, § 647, subd.
(j)(4)(C).)
3) Provides that distribution of an intimate image in violation
of a privacy agreement is not a crime if any of the following
applies:
a) The distribution is made in the course of reporting an
unlawful activity.
b) The distribution is made in compliance with a subpoena
or other court order for use in a legal proceeding.
AB 1310
Page 3
c) The distribution is made in the course of a lawful
public proceeding. (Pen.Code, § 647, subd. (j)(4)(D).)
4) Provides that it is an alternate felony-misdemeanor for a
person to willfully obtain the personal identifying
information of another person and to use such information to
obtain, or attempt to obtain, credit, goods, or services in
the name of the other person without consent. A felony
sentence for identity theft is to be served in a county jail
pursuant to Penal Code Section 1170, subdivision (h), unless
the defendant is disqualified from a jail term because he or
she has suffered a serious felony conviction or is required
to register as a sex offender. (Pen. Code § 530.5, subd.
(a).)
5) Defines "personal identifying information" as a name,
address, mother's maiden name, place of employment, date of
birth, unique biometric data, facial scan, or other unique
physical representation or data including and numerous
others. (Pen. Code § 530.55.)
6) Provides that the proper jurisdiction - venue - for a crime
is in a court in the jurisdiction where the crime was
committed and that when a crime is committed partly in one
county and party in another, trial can be held in either
county. (Pen. Code §§ 777 and 781.)
7) Provides that charges of identity theft can be filed in the
county where the theft of the personal information occurred
or the county where the information was used illegally.
Where multiple identity theft crimes involving the same
defendant and the same victim occur in multiple
jurisdictions, any one of those jurisdictions is a proper
jurisdiction for trial of all charges. (Pen. Code § 786,
subd. (b)(1).)
8) Provides that where multi-county identity theft crimes
involving the same defendants and the same victim are filed
in a single county, the court shall determine if that county
is the proper place for trial, or whether some charges should
be filed in another county, as specified. (Pen. Code § 786,
subd. (b)(2).)
AB 1310
Page 4
9) Provides that a search warrant may be issued upon any of the
following grounds:
a) The property was stolen or embezzled;
b) The property was used as to committing a felony;
c) A person possesses the property with the intent to
commit a crime, or the property is being held for purpose
of concealing them or preventing them from being
discovered;
d) The property or things to be seized consist of any
item or evidence that tends to show that a felony has been
committed;
e) The property consists of evidence of sexual
exploitation of a child or possession of child
pornography;
f) There is a warrant to arrest a person;
g) A provider of electronic communication or remote
computing service has records or evidence showing that
property was stolen or embezzled constituting a
misdemeanor, or that property or things are possessed by
any person with the intent to commit a misdemeanor, or for
the purpose of concealment;
h) The things to be seized include evidence of failure
secure workers compensation;
i) The property includes a firearm or deadly weapon and
specified circumstances related to domestic violence,
examination of a person's mental condition; protective
orders, apply;
j) The information to be received from the use of a
tracking device tends to show a felony or misdemeanor
violation of the Fish and Game Code, or a misdemeanor
violation of the Public Resources Code ;
aa) A driving under influence suspect has refused to
submit or complete, a blood test as required, as limited
AB 1310
Page 5
and specified; or
bb) The property is a firearm or ammunition and a gun
violence restraining order applies. (Pen. Code § 1524,
subd. (a)(1)-(14).)
10)Provides that the property seized in a search warrant may be
taken from any place, or from any person in whose possession
the property or things may be. (Pen. Code, § 1524, subd.
(b).)
11)Provides that when the property or things constitute
evidence of identity theft, the warrant may authorize a
search in another county if the person whose identifying
information was taken or used resides in the same county as
the issuing court. (Pen. Code § 1524, subd. (j).)
12)States that a provider of an electronic communication or
remote computing shall, pursuant to a warrant, disclose to a
prosecuting or investigating agency the name, address,
telephone number or subscriber identity, billing records and
length and types of services. (Pen. Code §§ 1524.3, subds.
(a)-(b).)
13)Allows a court issuing a search warrant as to an electronic
communication or remote computing service, to grant a motion
to quash or modify the warrant if the records sought are
unusually voluminous or compliance would cause an undue
burden on the provider. (Pen. Code§ 1524.3, subd. (c).)
14)States that a provider of electronic communication or remote
computing services, upon the request of a peace officer,
shall take all necessary steps to preserve records and
evidence in its possession pending the issuance of a warrant
or through a written request and affidavit declaring an
intent to file a warrant. Records shall be retained for a
period of 90 days, with a 90-day extension upon a renewed
request. (Pen. Code § 1524.3, subd. (d).)
This bill:
1) Expands the jurisdiction of trial for unauthorized
distribution of a sexual image to include the county in which
the offense occurred, the county in which the victim resided
AB 1310
Page 6
at the time the offense was committed, or the county in which
the intimate image was used for an illegal purpose.
2) Allows prosecution in any of the jurisdictions when multiple
offenses of unauthorized distribution of an intimate image,
either all involving the same defendants or defendants and
the same intimate image belonging to the one person, or all
involving the same defendant or defendants and the same
scheme of substantially similar activity, occur in multiple
jurisdictions.
3) Requires the court to determine the proper place of trial,
as specified.
4) Requires the district attorney filing the complaint to show
that the district attorney in each county where the charges
could have been filed has agreed that the matter should
proceed in the county of filing.
5) Requires the court to hold a hearing on its own motion, or
the motion of the defendant, to determine whether the county
of the victim's residence is the proper venue for trial, when
an action for unauthorized distribution of an intimate image
is filed in the county in which the victim resided at the
time the offense was committed and no other basis for the
jurisdiction applies. In ruling on the matter the court shall
consider the rights of the parties, the access of the parties
to evidence, the convenience to witnesses, and the interests
of justice
6) States that a provider of electronic communication service
or remote computing shall disclose to the contents of
communication originated by or addressed to the service
provider when the governmental entity is granted a search
warrant, in addition to the subscriber records, and service
and billing information allowed under current law.
7) Requires that the search warrant be limited to information
necessary to achieve the objective of the warrant, including
by specifying the targeted individuals or accounts,
applications or services, the types of information, and the
time periods covered by the warrant.
8) Specifies that information obtained through the execution of
AB 1310
Page 7
the warrant pursuant that is unrelated to the objective of
the warrant shall be sealed and not subject to further review
without a court order.
9) Requires notice to a subscriber or customer upon receipt of
the records by the governmental entity that obtained the
warrant.
10)Authorizes the court to delay notification, in 90-day
increments, upon showing that there is reason to believe that
notification of the warrant may have an adverse result,
including: endangering someone's life or safety , flight
from prosecution, destruction of or tampering with evidence,
intimidation of a witness; harm to the investigation or delay
of trial.
11)Requires, upon expiration of any delay of notification, the
governmental entity to provide to the customer by regular
mail or e-mail a copy of the request and the following:
a) Statement of the nature of the law enforcement
inquiry;
b) Notice that information maintained for the customer by
the service; provider was requested by and supplied to the
governmental authority;
c) The date of the request and information supplied;
d) Disclosure of any delay in notification;
e) The court that issued the order; and
f) A written inventory of the property that was taken.
Background
The proper place of trial is generally the county in which the
crime occurred. However, an identity thief can use a victim's
information across the state. Since 2002, trial of identity
theft crimes that occurred in multiple counties and involved a
single victim may be held in a single county. Such cases could
give rise to overlapping prosecutions, leading to numerous
problems, including investigation and evidence collection
AB 1310
Page 8
problems, claims that the first prosecutor to file charges
should have resolved all charges arising out of an incident and
others. To address such concerns, the applicable venue section
was amended to direct a court to consider whether all charges
should be tried in one county, or whether some charges should be
severed and tried in a different county.
Legislation in 2009 addressed another relatively common
situation - the same defendants are involved in an identity
theft scheme that involved numerous victims in more than one
county. Where a common scheme is involved, evidence from each
incident or crime is typically admissible as to each offense.
Requiring separate prosecution in each county where related
identity theft cases occurred could result in presentation of
the same evidence in each county resulting in a waste of
judicial, prosecution and defense resources.
Similar issues or considerations apply to cases involving cyber
porn revenge or exploitation. Under existing law in cyber porn
revenge cases, the defendant and prosecutors could spend a great
deal of time and expense negotiating dispositions that reach
across county lines. Numerous prosecutions can be filed,
wasting judicial resources and inconveniencing witness.
While specifically granting the authority for the government to
obtain the contents of electronic communications between the
subscriber and the service provided in misdemeanor cases, this
bill includes a fairly long list of procedures and limitations
applicable in these matters. In particular, this bill requires
that the information sought be limited to that necessary to the
objective of the warrant, that unrelated information be sealed
and that notice be given unless specified adverse consequences
could occur.
The author has explained that this bill would have originally
allowed a warrant for the search of a suspect's home computer.
To address arguments that execution of a warrant at a person's
home was too great an intrusion for a misdemeanor prosecution of
cyber-porn revenge or exploitation, the bill was amended to
authorize a warrant served on a service provider for the
contents of the suspect's communications with his or her service
provider. As noted above, the amendments also included a number
of protections for the target of the investigation and service
providers.
AB 1310
Page 9
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
According to the Senate Appropriations Committee:
Expanded jurisdictional authority: Potential cost savings in
judicial, prosecutorial, and defense counsel resources to the
extent the expanded jurisdictional authority eliminates the
need to conduct separate proceedings in more than one county.
Noticing requirements: Potential minor to moderate increase
in local costs, potentially in excess of $50,000 statewide, to
local law enforcement agencies for those noticing provisions
in this bill that exceed requirements under existing state and
federal law. To the extent local agency expenditures qualify
as a reimbursable state mandate, agencies could claim
reimbursement of those costs (General Fund). Costs would be
dependent on various factors including but not limited to the
number of persons requiring notice, both contemporaneously and
under the delayed noticing provisions, time/workload required
per notice, and the method of noticing used.
SUPPORT: (Verified 8/28/15)
Attorney General of California (source)
Association of Deputy District Attorneys
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California Police Chiefs Association
California Statewide Law Enforcement Association
Crime Victims United of California
Los Angeles Police Protective League
Peace Officers Research Association of California
Riverside Sheriffs Association
OPPOSITION: (Verified 8/28/15)
California Attorneys for Criminal Justice
California Public Defenders Association
AB 1310
Page 10
ASSEMBLY FLOOR: 79-0, 5/14/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,
Lopez, Low, Maienschein, Mathis, McCarty, Medina, Melendez,
Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson,
Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas,
Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,
Waldron, Weber, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Mayes
Prepared by:Jerome McGuire / PUB. S. /
8/31/15 17:15:06
**** END ****